On Tuesday, September 4th, Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit visited the Law School to discuss his new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, at the invitation of the Journal of Law and Politics and the Virginia Law Review. Judge Sutton is a great friend of UVA Law—the book grew out of a talk he gave at UVa and an article published in the Virginia Law Review. Judge Sutton’s book argues state supreme courts should have a more important position in the world of constitutional law, allowing states to have different rights and making it easier for a polarized nation to continue to exist as one. As he explained, lawyers tend to focus on federal rights, seeing the federal Supreme Court as the ultimate arbitrator of constitutional questions. Judge Sutton proposed a détente between the right and left’s lawyers: lawyers should focus on state court and state constitutions, allowing the flexibility of federalism and eschewing a one-size-fits-all solution.

Professors A.E. Dick Howard, Richard Schragger, Aditya Bamzai, and Molly Brady all discussed different aspects of the book and its four main topics (school funding, exclusionary rule, compelled sterilization, free speech, exercise of religion, and mandatory flag salutes), providing more insights and raising questions about the feasibility of a détente (which Judge Sutton acknowledges would be difficult to achieve, if not impossible). Professor Howard pointed out another benefit of state constitutions: the ease with which they can be amended. Since state constitutions can be amended much more easily than the federal constitution, voters can respond to state supreme court decisions by changing the constitution. He gave the example of Kelo v. City of New London, a federal decision about the meaning of “public use” in the takings clause which inspired states to tighten the state requirements of the government’s eminent domain power. Schragger focused on the importance of city power and reminded us we live in a three-tiered system, not a two-tiered system. Bamzai emphasized the Fourth Amendment. The states were the original innovators of the exclusionary rule among a variety of potential approaches to protecting against unreasonable searches and seizures, including money damages and trespass claims. He focused on the difficulty of striking a balance between federal and state protections. For states to have room to innovate, the federal rights must be set below state rights yet still high enough to achieve the desired policy outcomes.

Professor Brady took a different approach and discussed property rights, where state innovation has not come to fruition. She explained she shares Judge Sutton’s hope about the potential of state constitutions, but not his optimism. Ohio and other states invented the easement of access, which the Supreme Court eventually adopted. Professor Brady acknowledged some states responded to Kelo by specifically defining the Fifth Amendment’s “public use” as not to include economic development. Twenty-seven states added “or damaged” to their takings clauses, which initially seems like a positive development. As Professor Brady explained, though, the states all use the same “Alaska test” to assess if a property has been damaged by government action. Can you guess what the Alaska test is? You guessed it—the good ol’ Penn Central balancing test. In general, states have declined to interpret their own takings clauses differently than the federal takings clause.

Professor Brady also explored the impulse lawyers have to take cases to the United States Supreme Court. Because people tend to think they will win (although they know they could, theoretically, lose), they want to win at the national level. For public-interest organizations with limited resources, taking cases to the federal Supreme Court can be a more efficient use of resources since they can’t reasonably take a fifty-state approach. Professor Brady acknowledge a détente could be effective, but questioned the feasibility, given these considerations.

Judge Sutton also stressed the need for advocates to take their second shot. As he explained, by focusing on federal rights, advocates ignore their clients’ rights under state constitutions, to the peril of the client. Utah v. Strieff is the ultimate explain of the oft-ignored second shot. In Strieff, a narcotics detective began surveying a suspected drug house and observed Edward Strieff leaving the residence. The office detained Strieff and realized Strieff had an outstanding warrant, so the officer proceeded to arrest and search Strieff. The officer found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing the officer did not have probable cause to stop him. The Utah Supreme Court held 5-0 that the evidence must be suppressed as tainted by the initial, illegal stop. Utah appealed to the United States Supreme Court, which overruled Utah and considered the evidence to be admissible. Had Strieff’s lawyers also raised his right to be free from unreasonable searches and seizures under the Utah state constitution, the United States Supreme Court would not have been able to overturn the decision and the evidence still would have to be excluded.

Overall, Judge Sutton was a persuasive advocate for state supreme courts and federalism. He explained that, while not all judicial activism is ideal, at least state judicial activism has more democratic legitimacy. Although I too share concerns about the feasibility of a détente, I am intrigued by the argument. At the very least, I have a much greater appreciation for the second shot.

1 Judge Sutton also hires many UVA Law grads as clerks, including Professor Aditya Bamzai, a panelist at the event.